CORAM

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S. KAWU

O. OLATAWURA JUSTICE, SUPREME COURT

U. OMO JUSTICE, SUPREME COURT

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PARTIES

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WARNER AND WARNER INTERNATIONAL ASSOCIATES (NIGERIA) LTD APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The parties to this appeal entered into a written contract for the plaintiff to construct 199 Duplex buildings. 140 of these houses were to be constructed in Festac Town, and the balance of 59 at another location called Ipaja. A fixed date for the completion of the buildings was also agreed upon. Later defendant purported to terminate this contract. Following the intervention of the Federal Minister of Housing, Urban Development and Environment, this termination was set aside and the plaintiff returned to the site and continued his work. The contract however continued to be dogged with controversy, the defendant finally terminated the contract. Aggrieved by this action, the plaintiff sued the defendant in the High Court of Lagos. The trial judge gave judgment in favor of the plaintiff. The defendant also counter-claimed for general and special damages. The trial judge struck out the claims. Dissatisfied with this judgment, the defendant appealed to the Court of Appeal seeking a reversal of the whole judgment. The appeal was allowed. Both parties further appealed to the Supreme Court against the judgment of the court below.

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HELD

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The appeal succeeded. The judgment of the Court below setting aside the judgment of the High Court on the plaintiff’s claims and ordering a retrial was set aside. The order of the court below restoring the defendant’s counter-claim and ordering its being retried in the High Court was affirmed.

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ISSUES

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Whether or not Exhibit 1 was terminated in 1975 and if so whether the parties made a new agreement at the time for regulating their relationship with the respondent.Whether ‘time’ is ever of essence of contracts like Exhibit 1 and even if time is of such essence, whether on the facts of this case the appellants have waived their rights arising out of the alleged failure of the respondents to keep to such time.

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RATIONES DECIDENDI

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THE BURDEN OF PROOF OF AN ITEM OF SPECIAL DAMAGE MUST BE DISCHARGED

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“When it is remembered that the item to be proved is an item of special damage, the error in the decision of the trial Judge becomes more glaring. The burden of proof of an item of special damage has most certainly not been discharged.” Per OMO, JSC.

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INSERTING A TIME CONDITION

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“There is nothing to prevent the parties from inserting a time condition in a building contract Time may however subsequently become of the essence if the parties so provide.” Per OMO, JSC.

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THE ESSENCE OF TIME

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“For time to be of the essence of a contract, the agreement as to time must be firm and unequivocal.” Per OMO, JSC.

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CLAIM ON QUANTUM MERUIT

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“A claim on quantum meruit, means that no specific sums can be claimed and proved. If they can, then each item stands or falls on the basis of evidence led.” Per OMO, JSC.

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CASES CITED

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Quadrangle Development and Construction Company Ltd v. Jenner (1974) 1 WLR 68

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STATUTES REFERRED TO

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